BAKER, J., delivered
the opinion of
the Court in which CRAWFORD, C.J., joined.GIERKE, J., filed an opinion concurring in part and in the
result which
EFFRON, J., joined.ERDMANN, J., filed a
separate opinion concurring in part and in the result.

On
September 17,
1999, contrary to her plea, Appellant was convicted by general
court-martial of
the premeditated murder of her infant daughter in violation of Article
118,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 918 (2000).The
sentence, adjudged by a panel of officer
and enlisted members, provided for a dishonorable discharge,
confinement for
life, forfeiture of all pay and allowances, a reprimand, and reduction
to the
lowest enlisted grade.Except for the
reprimand, the convening authority approved the sentence as adjudged.The Air Force Court of Criminal Appeals
affirmed the approved findings and sentence in an unpublished opinion.United States v. Traum,
No. ACM 34225, slip op. (A.F. Ct. Crim. App. June 28, 2002).We granted review to determine whether
Appellant’s confession to Air Force Office of Special Investigations
(AFOSI)
investigators should have been suppressed, and whether the military
judge allowed
the Government’s expert witness to present inadmissible profile
evidence
against Appellant.1For the reasons that follow, we affirm.

I

The
Confession of January 13

On
the morning of December 21,
1998,
base emergency medical personnel received a phone call from Appellant
indicating that her eighteen-month old daughter Caitlyn was not
breathing.During the call, Appellant
suggested that the
child might be having a seizure.Minutes
later, medical personnel arrived at Appellant’s quarters and began to
treat the
unresponsive child.The child was
transported by ambulance to the hospital where efforts to revive her
continued.Despite the efforts of
hospital personnel, Caitlyn was pronounced dead shortly after arriving
at the
emergency room.Appellant was home alone
with the child at the time the emergency call was made.

In
the weeks following the child’s death, AFOSI investigators focused on
Appellant
as a homicide suspect.On January 12, 1999, Appellant
called
AFOSI to inquire about the status of the investigation of her
daughter’s death.The agents expressed a
desire to discuss the
investigation with Appellant at their office and she agreed to meet
with them
the following morning.

When
Appellant
arrived at the AFOSI office on the morning of January 13, she met with
Special
Agents (SA) Engelman and Gage and requested an update on the
investigation.Appellant also informed
them that she needed a copy of her daughter’s autopsy report and death
certificate in order to process her humanitarian reassignment.After further “idle chit chat,” SA Engelman
asked Appellant if she would be willing to take a polygraph. At first,
Appellant neither declined nor accepted the invitation to take the
polygraph.SA Engelman explained to
Appellant that a possible benefit of taking the examination might be to
rule
her out as a suspect.

When
asked again
whether she was willing to take the examination, Appellant replied that
“she
did not want to talk about the details of the night of 20/21 December
1998.”SA Engelman subsequently
explained to Appellant that it might not be necessary to go into all of
the
details of that night, but it might be necessary to go into some of the
details.The agent further explained
that if Appellant still had concerns with talking about the details of
that
night, she could raise them with the polygrapher, SA Kraus.Appellant acknowledged that she understood
this information.

Following
this discussion, Appellant accompanied SA Kraus into a room to be
interviewed
and polygraphed.Prior to asking any
questions, SA Kraus administered Appellant’s Article 31 rights and
advisement.He also informed Appellant
that she was not required to take the examination.Appellant waived these rights and agreed to
be polygraphed and interviewed.There is
no indication that at any time after the rights advisement, Appellant
expressed
her earlier concerns about discussing the details of the night of
December 20
or the morning of December 21 to SA Kraus or anyone else.

After
the polygraph examination, SA Kraus interviewed Appellant.During this interview, Appellant disclosed
that she had killed Caitlyn by pushing the child’s head into the couch
and
suffocating her.Appellant reduced this
confession to writing and signed it.This written statement recounts that Appellant “gently pressed
Cait’s
head into the couch” ostensibly to save Caitlyn from her father’s
abusive
ways.Appellant included in her
statement that she decided to take the child’s life “around midnight on the 20 or 21st Dec. 98.”When asked why she smothered the child as opposed to killing her
in some
other way, Appellant’s written response was, “I didn’t want her to
hurt.”At the time of the AFOSI interview,
Appellant
was a married, 25 year old E-4 with 6 1/2 years of service.

Prior
to the trial
on the merits, Appellant moved to suppress her confession to SA Kraus.In her motion, Appellant initially contended
that because she was a suspect on the morning of January 13, her
Article 31
rights should have been read prior to the agents engaging in any
conversation
with her.For the purposes of this
appeal, Appellant has narrowed her claim to an assertion that SA
Engelman’s
question regarding taking a polygraph was designed to elicit an
incriminating
response.Therefore, according to
Appellant, SA Engelman was required to warn her of her Article 31
rights before
asking this question.Appellant also
contends, as she did at trial, that her response to SA Engelman’s
question that
“she did not want to talk about the details of the night of 20/21
December
1998” was an invocation of her Fifth Amendment right to remain silent.Further, Appellant asserts that her
invocation was unequivocal and not honored, therefore, any statement
taken
after Appellant’s response to SA Engelman’s question regarding the
examination
was tainted and should have been suppressed.

A.The Requirement to Warn under Article 31

Appellant
asserts
that the agent’s request for her to take a polygraph was either
interrogation
or a request for a statement within the meaning of Article 31.

No
person subject
to the UCMJ may “interrogate, or request any statement” from a person
suspected
of an offense without first warning that person in accordance with
Article
31(b).Article 31(b),
UCMJ, 10 U.S.C. § 831 (2000).“’Interrogation’ includes any formal or informal questioning in
which an
incriminating response either is sought or is a reasonable consequence
of such
questioning.”Military Rule of Evidence
305(b)(2)[hereinafter M.R.E.]; Rhode
Island v. Innis,
446 U.S.
291, 301 (1980).M.R.E. 305(b)(2) was broadly
fashioned “to
thwart ‘attempts to circumvent warnings requirements through subtle
conversations.’”United States v.
Ruiz, 54 M.J. 138, 141 (C.A.A.F. 2000)(quoting
S.
Saltzberg et al., Military Rules of Evidence Manual 225 (4th
ed.
1997)).However, interrogation involves
more than merely putting questions to an individual.Id.

We
recognize that
a request to take a polygraph may arise in a variety of circumstances
related
to interrogation.SeeWyrick
v. Fields, 459 U.S.
42 (1982); United States
v. Applewhite, 23 M.J. 196 (C.M.A. 1987).2In
each instance, the question will be
whether an incriminating response is sought or is the reasonable
consequence of
the comment or remark.Of course, a
rights advisement prior to such a question would remove the necessity
for such
analysis.Based on the context in which
SA Engelman asked Appellant whether she would take a polygraph, we
conclude
that an incriminating response was not a reasonable consequence of SA
Engelman’s inquiry.In our view, the
“reasonable consequence” of SA Engelman’s question in the context
presented was
either yes or no.Similarly, we agree
with the conclusion reached by the Court of Criminal Appeals that “[n]o
incriminating response from the appellant was sought . . . .”Traum, No. ACM 34225, slip op. at
4.The polygraph and its operator were
located in an adjacent room.SA
Engelman’s objective was to encourage Appellant to take the polygraph
not to
ask questions that might serve as an investigative substitute for what
the
agents hoped to garner from the administration of the polygraph exam.Thus, we conclude that an incriminating
response was neither sought nor was it a reasonable consequence of SA
Engelman’s inquiry.

B. Right to remain silent

We
next determine
whether Appellant’s response to SA Engelman’s question was an
invocation of her
right to silence, and if so, whether that right was “scrupulously
honored.”SeeMiranda v. Arizona,
384 U.S.
436,
479 (1966).While SA Engelman’s question
was not interrogation as measured under Article 31, Appellant could
nonetheless
invoke her Fifth Amendment right to silence in response to the question.The right to remain silent “protects against
any disclosures that the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so
used.”Kastigar v. United States, 406 U.S. 441, 444-45 (1972)."[A]pplication
of the privilege is not limited to persons in
custody or charged with a crime; it may also be asserted by a suspect
who is
questioned during the investigation of a crime."United
States
v. Alameda,
57 M.J. 190, 199
(C.A.A.F. 2002).See alsoCombs v. Coyle, 205
F.3d 269, 283 (6th Cir. 2000);United
States v. Brunson,
952 F.2d 1196,
1201 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); Coppola v.
Powell, 878
F.2d 1562, 1568 (1st Cir. 1989), cert.
denied, 493 U.S. 969 (1989); United
States
ex rel. Savory v. Lane,
832 F.2d 1011,
1017 (7th Cir. 1987).

This
Court has established that “[i]f the individual indicates in any
manner, at any
time prior to or during questioning, that he wishes to remain silent,
the
interrogation must cease[.]”United States v. Sager, 36 M.J. 137,
145 (C.M.A. 1992)(quoting Miranda,
384 U.S.
at 473).This important
principle is incorporated in the Manual for Courts-Martial as well.“If a person chooses to exercise the
privilege against self-incrimination . . . questioning must cease
immediately.”M.R.E. 305(f)(1).Although no
particular words or actions are required to exercise one’s Fifth
Amendment
right to silence, we have held that its invocation must be unequivocal
before
all questioning must stop.Sager,
36 M.J. at 145; seeUnited
States
v. Schake,
30 M.J. 314, 319 (C.M.A. 1990); see alsoCampaneria v. Reid,
891
F.2d 1014, 1021 (2d Cir. 1989), cert denied, 499 U.S. 949
(1991).

Appellant’s
response that “she did not want to talk
about the details of the night of 20/21 December 1998”
did not foreclose the possibility that she was willing to take
the polygraph and discuss other aspects of the investigation, such as
the
child’s medical history or the manner in which Appellant cared for her
child.Thus, Appellant’s words did not
unequivocally invoke her right to remain silent.

SA
Engelman, who was not assigned to administer the polygraph,
informed Appellant that she might not have to talk about all the
details of
that night, but that she was free to raise her concerns with the
individual administering
the examination.The military judge
found Appellant understood this advice.Later at the interview with SA Kraus, Appellant had the
opportunity to
do as SA Engelman had advised.Instead,
Appellant voluntarily decided to take the examination.This decision was made after being informed of,
and waiving, her right to counsel and her right to remain silent, as
well as
after being informed of her right to refuse the polygraph examination.Based on these facts, the military judge
concluded that Appellant made an informed decision to waive her rights
before
making any admissions to SA Kraus and that her statement was voluntary.We agree.Therefore, the military judge did not abuse his discretion in
admitting
Appellant’s confession.

II

Expert
Testimony
at Trial

A. Background

The
Government’s
case on the merits was comprised of Appellant’s confession, testimony
from the
emergency first responders, the medical examiner, a forensic
pediatrician, and
several witnesses who described Appellant’s inappropriate grief
response.

Unsuccessful
in
its efforts to suppress the confession, the defense proceeded at trial
on the theory
that Appellant’s statement of January 13 was the false product of the
agents’
efforts to induce Appellant into making a statement.The defense also suggested during its opening
statement that the child may have died as a result of a seizure; a
possibility
the defense maintained could not be eliminated beyond a reasonable
doubt by the
Government.Finally, the defense
attacked the credibility and competence of the Government’s medical
examiner.

This
issue focuses
upon the testimony of the Government’s forensic pediatrician Dr. Cooper.Dr. Cooper was called by the Government to
discuss child abuse in general and in the words of trial counsel, to
help the
members understand how “parents can kill their children.”The defense moved in limine to preclude the
witness from offering what it felt was inadmissible profile evidence
and
evidence of parental behavior that should otherwise be the subject of
eyewitness rather than expert witness testimony.

1.
The Article 39(a) session

At
a session
pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), Dr. Cooper
presented her qualifications and experience to the military judge.3She
then testified about child abuse and maltreatment as it pertained to
inflicted
injuries on children.During this
session, trial counsel asked Dr. Cooper how one arrives at a diagnosis
of fatal
child abuse.The doctor responded in
part:

The most
important
aspects are the history as given by the family or whoever was in sole
custody
of the child.This is just critically
important and there is no form of medicine, typically, that proceeds
without a
history. . . .And what is really
critical in that history is consistency of the history.If a physically custodial person who presents
with a child to an emergency room environment gives a history that,
over that
night or over the subsequent days to weeks, changes, you have to be
very
concerned regarding the fact that this may be an inflicted injury.

. . . .

The second
thing we
look at is the behavior of the parents or whoever are the custodial
people.The behavior of the person
taking care of the child is very telling with respect to whether or not
they
are exhibiting concern for the well-being of the child. . . . The
behavior and
demeanor of the parent or the custodial care provider at the time the
child
presents to the hospital is an important fact and one which is to be
documented
in the medical record.

Finally, the
physical
examination, which may reflect exactly what
happened
at the time when you are in the emergency room environment, but may
actually,
ultimately, require the evaluation and determination of a medical
examiner.In certain types of child
maltreatment deaths, the physical examination or the findings on the
autopsy
may not be one hundred percent clear as to what has happened to the
child.This is particularly the case in
suffocation
or asphyxiation type deaths . . . .

Dr. Cooper went on to
explain that
this tripartite methodology - history, parental/custodial behavior, and
examination - was relied on by “numerous specialists in the field.”She then named some of these “specialists,”
including several forensic pediatricians whom Dr. Cooper described as
“well-known” authorities in their field as well as certain law
enforcement
professionals.

Trial
counsel then shifted the focus of Dr. Cooper’s testimony to the area of
single
episodes of child abuse versus multiple episodes.Relying
on a work by a Dr. James A.
Monteleone entitled Child Maltreatment (2d ed. 1998), which Dr.
Cooper
considered an authoritative reference, she testified that “[i]n eighty
percent
of fatal child abuse cases, that fatal event is the first time that
that child
has ever been abused.”Next, relying on
a report by the Advisory Board on Child Abuse and Neglect,4 Dr. Cooper testified that
according to the
report “the people most likely to kill children are their biological
parents –
overwhelmingly so.”Citing to
professional literature in her field, Dr. Cooper further testified that
there
are two different categories of predisposing factors to child abuse and
neglect
- one category pertaining to the child and one pertaining to the adult.Regarding the category relevant to the child,
Dr. Cooper stated that “the leading cause of trauma death, now, in the United
States, for children under the age of
four,
is child maltreatment.”She then
discussed the adult category that included such factors as the presence
of
substance abuse, the presence of biological parents as opposed to
step-parents
and babysitters, and whether the child was in a military family setting.

Finally,
following Dr. Cooper’s testimony pertaining to the methodology that
considers
history, behavior, and physical examination, trial counsel sought Dr.
Cooper’s
ultimate opinion as to Caitlyn Traum’s cause of death.Before doing so, however, trial counsel asked
Dr. Cooper what evidence and documents she reviewed in forming her
opinion.She stated that she reviewed
Caitlyn’s medical records, Caitlyn’s sister’s medical records, and the
investigation reports that included Appellant’s confession, the
emergency
medical responses, Family Advocacy records, and the autopsy reports.She then opined, “I feel that her cause of
death is homicide or an inflicted fatal child abuse.”Dr. Cooper added that she believed the child
died as a result of inadequate oxygen consistent with asphyxiation and
that
Caitlyn “was asphyxiated through a suffocation method.”Her reasoning was as follows:

The
reason that I believe that is,
first of all, the child died in a manner that cannot be explained by
Sudden Infant
Death Syndrome or any other obvious medical cause. . . .The second reason that I believe this is the
case is because the history given by the custodial person--in this
case,
her
mother-varied from the time she talked to the EMS personnel to the time
that
she talked to the individuals at the hospital, a very key element.

. . . .

. . .
She gave a different history as
to what had happened to the child.Whenever you see a change in history as to what has happened, that is a very critically important element
when you’re
trying to decide if this is an accidental versus inflicted injury.And then the third reason that I believe this
is because this child had trauma to her upper lip.Now, I understand that this patient underwent
significant resuscitation efforts, but I have most certainly seen and
evaluated
suffocation victims-death cases-where children were suffocated to
death, who had similar injuries to the
inner aspect of their upper
lip.

Following
the testimony presented at the Article 39(a) session, defense counsel
challenged Dr. Cooper’s tripartite methodology.The defense focused on Dr. Cooper’s use of the victim’s history
as well
as her use of the behavior of the custodial parent.Defense counsel also argued that Dr. Cooper’s
consideration of Appellant’s inconsistent history regarding Caitlyn’s
condition
amounted to an expert’s assessment of Appellant’s credibility and was
therefore
impermissible.Finally, the defense
asserted that Dr. Cooper’s reliance on Appellant’s alleged
inappropriate grief
response was inadmissible character evidence because it portrayed
Appellant as
a bad parent.While defense counsel
suggested that the doctor’s opinion was based on only one aspect of
Appellant’s
conduct, her grieving reaction, Dr. Cooper steadfastly insisted that
this
factor was merely one of a number of factors considered in the “whole
assessment when you look at the history, behavior, physical examination
and
autopsy finding.”

After
taking Dr. Cooper’s testimony at the Article 39(a) session, the
military judge
heard argument from both sides as to their view of the permissible
parameters
of Dr. Cooper’s testimony before the members.The military judge then ruled that he would allow Dr. Cooper’s
testimony
regarding child abuse in general, her testimony regarding single
episode versus
multiple episodes of child abuse, her statement that biological parents
are the
most likely to fatally abuse their children, and the factors relevant
to
history, behavior, and physical examinations relied upon by experts in
diagnosing fatal child abuse.The
military judge reasoned that this testimony would be allowed because
“it is
counterintuitive for a parent to kill their eighteen month old child,
based on
the facts that have come out so far.”

The
military judge
also ruled that the expert would not be allowed to testify regarding
the
so-called adult category of predisposing factors of child abuse.The judge prohibited such testimony because
he felt it got into profile evidence and ran “awfully close to the
types of things
that the courts have found to be error.”He also ruled that the witness would not be allowed to testify
about a
typical grieving parent’s reaction as contrasted against that of a
non-grieving
parent.The judge reached this decision
because “the [M.R.E.] 403 [prejudice] aspect here outweighs the
probative value
for the members.”

Finally,
the judge
determined that Dr. Cooper would not be permitted to render her opinion
that
the cause of death was inflicted fatal child abuse.However, he did rule that the witness could
give her opinion that the cause of death was non-accidental
asphyxiation.After further discussion,
defense counsel
indicated that he understood the military judge’s ruling, but indicated
his
objection to the testimony still stood.Thereafter, the military judge concluded the Article 39(a)
session.

2.
Dr. Cooper’s testimony before the members

During
the trial
before the members, trial counsel elicited testimony from Dr. Cooper
consistent
with the rulings by the military judge.In particular, she testified, “Overwhelmingly, the most likely
person to
kill a child is going to be his or her own biological parent.”Dr. Cooper also testified that “[i]f a child
is less than four years of age, the most common cause of trauma death
is going
to be child maltreatment.”The third
statement given before the members was, “Eighty percent of children who
die,
die from a one-time event.”After
further testimony relevant to various seizure disorders, sudden infant
death
syndrome, means by which children accidentally suffocate, and other
aspects of
fatal child abuse, Dr. Cooper concluded her testimony with the
following
statement:”It
is my medical opinion that the cause of death for Caitlyn Traum was
asphyxiation of a non-accidental nature.”There was no cross-examination from the defense.

B.Discussion

Appellant
challenges Dr. Cooper’s testimony on two grounds.First, Appellant asserts that three of Dr.
Cooper’s opinions that were presented to the members constituted
profile
evidence.In particular, the defense
focused on these statements:

“[i]f
a child is
less than four years of age, the most common cause of trauma death is
going to
be child maltreatment”;

“Eighty
percent
of children who die, die from a one-time event”; and

“Overwhelmingly,
the most likely person to kill a child is going to be his or her own
biological
parent.”

Second,
Appellant
maintains that the military judge erred in admitting Dr. Cooper’s
testimony
because it was based on Dr. Cooper’s review of Appellant’s behavior in
the
emergency room.We review Appellant’s
arguments in turn to determine whether the military judge abused his
discretion
in allowing all or part of Dr. Cooper’s testimony.SeeUnited States v. Houser, 36
M.J. 392, 397 (C.M.A. 1993).

1.
Profile Evidence

Before
expert testimony may be admitted, the following factors must be
established by
the proponent of such testimony:

(A) the
qualifications of the expert,Mil.R.Evid. 702;[5] (B) the subject matter of
the
expert
testimony, Mil.R.Evid. 702; (C) the basis for the
expert
testimony, Mil.R.Evid.703; (D) the legal
relevance of
the evidence, Mil.R.Evid.401 and 402; (E)
the
reliability of the evidence, United States v. Gipson, 24 M.J.
246 (CMA
1987), and Mil.R.Evid.401; and (F) whether
the
‘probative value’ of the testimony outweighs other considerations,
Mil.R.Evid.
403.

Houser,
36
M.J. at 397.

Expert testimony is
admissible when
“scientific, technical, or other specialized knowledge will assist the
trier of
fact to understand the evidence or to determine a fact in issue[.]”M.R.E. 702.“The
test is not whether the jury could reach
some conclusion in the absence of the expert evidence, but whether the
jury is
qualified without such testimony ‘to determine intelligently and to the
best
possible degree the particular issue without enlightenment from those
having a
specialized understanding of the subject[.]’”Houser, 36 M.J. at 398.

The
question in
this case is whether Dr. Cooper’s opinions constituted impermissible
profile
evidence or whether they were admissible opinions of specialized
knowledge
under M.R.E. 702.6
Child
abuse is an
area where specialized knowledge regarding pediatric forensics and
child abuse
may indeed be helpful to members.Children incur all sorts of injuries as they move through
infancy to the
toddler years and beyond.Thus, a panel
might well benefit from an understanding of the methodology doctors use
to determine
the cause of an infant’s injury.In the
case of fatal child abuse, the value of such specialized knowledge is
equally
apparent.Such information helps members
discern the critical elements of testimony and place that testimony
within an
analytic framework.This information may
also help disabuse members of preconceptions that might cloud their
ability to
focus on the evidence presented as opposed to preconceptions about the
nature
of the offense at issue.In light of
this predicate, we believe Dr. Cooper’s first two statements fall
within the
rubric of specialized knowledge that is useful to the members in
understanding
the evidence and determining a fact in question.This
testimony was given in the context of
her general description of fatal child abuse.Further, these particular statements relate to the
characteristics of
the child victim in this case rather than Appellant.Comparable evidence has been admitted in
cases involving rape trauma syndrome.SeeUnited States
v. Reynolds, 29 M.J. 105, 111 (C.M.A.
1989).Similarly, evidence of battered
child
syndrome is often admitted to show that a particular injury “is not
accidental
or is not consistent with the explanation offered therefore but is
instead the
result of physical abuse by a person of mature strength.”United
States
v. White, 23 M.J. 84, 87 (C.M.A. 1986).

As
we explained in
Banks, the ban on profile evidence exists because this process
treads
too closely to offering character evidence of an accused in order to
prove that
the accused acted in conformity with that evidence on a certain
occasion and
committed the criminal activity in question.This, of course, is prohibited under M.R.E. 404(a)(1).SeeBanks,
36
M.J. at 161.These two statements
by Dr. Cooper do not implicate that concern because they relate to the
characteristics of the child victim in this case rather than Appellant.

What
we condemned
in Banks was the Government’s construction of a syllogism
“(major
premise, minor premise, and conclusion)” used in persuading the members
that
the appellant was a child abuser.36
M.J. at 162 n.11.In that case, the Government, through its expert witness,
presented the
major premise that families with a profile of three particular
identified risk
factors presented an increased risk of child sexual abuse.The Government then established through
further testimony the minor premise that Banks and his family fit this
profile.Finally, the prosecution argued
for the conclusion that since the minor premise established the major
premise, the
members could not help but decide that Banks was a child abuser.We discern no such tactic in the record of
this case.

Testimony
setting
up a child battering profile must be distinguished from testimony
focusing on the
characteristics of a battered child.SeeDay, 569 N.E.2d at 400.See also Myrna S. Raeder, The Better
Way: The Role of Batterers’ Profiles
and
Expert “Social Framework” Background in Cases Implicating Domestic
Violence,
68 U. Colo. L. Rev. 147,
160
(1997)(discussing the distinction between
battered
wife syndrome and evidence of a batterer profile).The former is irrelevant because it is not
necessarily true that an accused is a batterer just because the
individual fits
a certain profile.However, the latter
is often helpful in determining a fact in issue.This
is especially true when deciding, as in
the instant case, whether the child died from a seizure as posited by
the
defense or whether she was suffocated as alleged by the Government.We conclude Dr. Cooper’s testimony was the
latter.

Dr.
Cooper’s third
statement, “Overwhelmingly, the most likely person to kill a child is
going to
be his or her own biological parent,” is more troubling.Following Dr. Cooper’s testimony and
counsel’s respective arguments at the Article 39(a) session, the
military judge
contextually culled out the testimony he considered profile in nature.Consequently, the military judge attempted to
limit Dr. Cooper’s testimony to child characteristics of abuse like the
history
of diagnosing child abuse, fatal versus nonfatal child abuse, and
single
episode versus multiple episodes of abuse.The judge barred Dr. Cooper from testifying regarding adult
characteristics of child abusers, like substance abuse, living in a
military
environment, and the parent of an unplanned pregnancy.

Nevertheless,
Dr.
Cooper’s statement regarding biological parents clearly reached both
the
characteristics of the victim as well as the characteristics of the
typical
offender.It is not enough to say that
the Government did not expressly place the accused within the statistic
presented, for the accused manifestly fit the statistical pattern
presented
without the Government connecting the dots.Moreover, while Dr. Cooper’s testimony did not come in the form
of
numeric probability, members might have been left with the impression
that if
the testimony indicated Appellant’s daughter died as a result of child
abuse,
the probability Appellant committed the offense was “overwhelming,”
regardless
of what specific evidence was presented.In essence, the statement placed a statistical probability on
the
likelihood that Appellant committed the offense.Thus,
we conclude that it was impermissible
profile evidence.

However,
any error
in admitting this statement was harmless.First, the evidence was introduced after Appellant’s confession
had been
admitted and presented to the members.Second, the critical question in this case was whether the
victim died
by accidental or intentional asphyxiation, not the identity of the
perpetrator.Appellant did not contest
being alone with the victim at the time of the child’s injury.

2.
Basis for the Expert’s Opinion

Appellant
also
argues that Dr. Cooper should not have been allowed to give her
ultimate
opinion on the cause of Caitlyn’s death because it was not based solely
upon
medical evidence, but also rested upon her subjective evaluation of
Appellant’s
grieving conduct.In particular, during
the Article 39(a) session, Dr. Cooper testified that when forming her
opinions
she considered the fact that Appellant gave differing accounts
regarding
Caitlyn’s condition to the 911 operator, the paramedics when they
arrived at
her quarters, and to the hospital personnel
when the
child arrived at the emergency room.

Dr.
Cooper also
considered certain statements Appellant allegedly made to witnesses at
the
hospital as suggestive of an uncharacteristic and inappropriate grief
response.For example, Appellant was
alleged to have stated to one witness who was trying to console her at
the
hospital, “I’m just glad I saved the toy receipts.”Traum, No. ACM 34225 Slip op. at
2.When this witness commented that the
dead child had been a beautiful girl, Appellant stated, “She really was
mean.She was mean to her sister and
really active.”Id. at 3.At root,
Appellant argues these remarks were
observations lay persons could observe and testify to without medical
knowledge.Therefore, Dr. Cooper’s
testimony was not based on specialized medical knowledge, but ordinary
lay
observations already offered to the members by non-expert witnesses.

An
expert’s opinion may be based upon other sources such as “personal
knowledge, assumed
facts, documents supplied by other experts,” or the testimony of
witnesses at
trial.Houser,
36 M.J. at 399; M.R.E. 703.Dr.
Cooper’s
testimony indicates that her opinions were not based solely on
Appellant’s
grieving reaction, but on a tripartite methodology generally accepted
as
authoritative in the forensic pediatric field.This methodology focuses on the history of events leading to a
child’s
condition, the behavior of the custodial caretaker, and the physical
examination reports including those from the autopsy.Further, the record supports a conclusion
that this methodology is relied on by experts in the field of forensic
pediatrics.M.R.E. 703 allows experts to
rest their
opinions on precisely this basis.Therefore, it is clear Dr. Cooper’s testimony was rooted in more
than
lay observations regarding Appellant’s conduct.Moreover, it was the eyewitnesses and not Dr. Cooper who
testified to
the members about Appellant’s reactions in the emergency room.

3.
Probative Value

However
relevant and reliable an expert’s testimony might be, such evidence
“may be
excluded if its probative value is substantially outweighed by the
danger of
unfair prejudice, confusion of the issues, or misleading the members[.]”M.R.E. 403.The
record indicates that the military judge
was acutely aware of the dangers of profile evidence.It is worth noting the military judge’s
comment at the time he made his ruling with regard to admission of Dr.
Cooper’s
testimony.The judge clearly considered
the expert’s testimony balanced against “the facts that have come out
so
far.”When Dr. Cooper testified during
the trial, the members had already received Appellant’s confession, the
testimony of the medical examiner, and the testimony of various
witnesses
concerning statements Appellant made indicating either a lack of grief
or at
best, an inappropriate grief response.Further, the military judge culled out what he thought was
impermissible
profiling of Appellant and allowed opinions that were based on the
professional
literature of the field of expertise and on a methodology accepted by
experts
in that field.Finally, it is clear the
military judge understood the constraint of M.R.E. 403 when he was
determining
what would or would not be allowed.Based on this record, we cannot say the military judge abused
his
discretion in weighing the probative value of the expert testimony
against any
prejudicial effect it might have presented.

III

Life
Without Possibility of Parole

Finally,
Appellant takes issue with the advice given to the convening authority
by the
staff judge advocate.The advice given
stated that the “maximum imposable sentence for the offense of
[premeditated
murder] of which SrA Traum was convicted is life imprisonment,
without
eligibility for parole.”SJAR, para. 6 (emphasis added).Article 56a, UCMJ, 10 U.S.C. § 856a (2000),
was enacted on November 18,
1997.Appellant was sentenced
on September 17, 1999.In light of our recent decision in United
States v. Ronghi, 60 M.J. 83 (C.A.A.F. 2004), life without
eligibility for
parole was an authorized punishment at the time of Appellant’s trial.

Decision

The
military judge did not abuse his discretion in admitting the expert
testimony
or Appellant’s confession, nor, was there error in the post-trial
processing of
Appellant’s case.The decision of the
United States Air Force Court of Criminal Appeals is affirmed.

FOOTNOTES:

1
The granted
issues are:

I.WHETHER APPELLANT’S STATEMENTS TO SPECIAL AGENT KRAUS SHOULD
HAVE BEEN
SUPPRESSED BECAUSE:

A. THE
REQUEST
BY AGENTS OF THE AFOSI THAT APPELLANT SUBMIT TO A POLYGRAPH EXAMINATION
CONVERTED THEIR DISCUSSION INTO OFFICIAL QUESTIONING DURING WHICH
APPELLANT
COULD INVOKE HER RIGHT TO REMAIN SILENT; AND

B.
APPELLANT’S
STATEMENT THAT SHE DID NOT WISH TO DISCUSS THE EVENTS OF THE NIGHT HER
DAUGHTER
DIED WAS AN INVOCATION OF HER RIGHT TO REMAIN SILENT, THUS REQUIRING
THAT THE
AFOSI AGENTS SCRUPULOUSLY HONOR HER REQUEST TO REMAIN SILENT.

II.WHETHER THE
MILITARY JUDGE COMMITTED
PREJUDICIAL ERROR BY ALLOWING THE PROSECUTION EXPERT WITNESS, DR.
COOPER, TO
TESTIFY AS TO INADMISSIBLE STATISTICAL PROFILE EVIDENCE AND TO VOICE A
MEDICAL
OPINION OF HOMICIDE LARGELY BASED UPON APPELLANT’S CONDUCT.

III.WHETHER THIS COURT
SHOULD ORDER NEW
POST-TRIAL PROCESSING WHERE THE STAFF JUDGE ADVOCATE’S RECOMMENDATION
INCORRECTLY ADVISED THE CONVENING AUTHORITYON
THE MAXIMUM AUTHORIZED PUNISHMENT.

This third issue
is resolved
against Appellant in summary fashion at the end of this opinion.

2Each of these cases
can be distinguished from
the present case.Both involved the
custodial interrogation of individuals who had previously invoked their
right
to counsel.In Wyrick, the
Supreme Court reasoned that by requesting to take a polygraph the
defendant had
“intiate[d] dialogue with the authorities” such that interrogation
could
resume.Wyrick v.
Fields, 459 U.S. 42, 48 (1982).In Applewhite,
the focus was on whether a previous invocation of the right to counsel
had been
honored or whether it had been undermined.There, the accused requested counsel, but investigators asked
the
accused to take a polygraph. Several days later he appeared prepared to
do
so.Prior to the examination he was
confronted with new as well as previous allegations of wrongdoing.Whatever dicta may have been used in
resolving the issue in that case, there was no holding that the mere
request to
take the polygraph was intended to elicit an incriminating response.Rather, in the words of Judge Cox, “After appellant
invoked his right to counsel, the investigator sought to circumvent the
exercise of that right by requesting appellant to take a polygraph
examination.”United States v. Applewhite, 23 M.J. 196, 199
(C.M.A. 1987).Interrogation of
Applewhite occurred when he returned several days later to actually
take the
examination.Id.Significantly,
Appellant in this case was
neither in custody nor had she invoked her right to counsel.

3
Dr. Cooper
previously served as the assistant chief of pediatric service at
Schofield
Barracks, the chief of pediatrics at WomackArmyMedicalCenter,
Deputy Commander for clinical services, pediatric representative on the
Family
Advocacy Case Management Team, instructor at the Army Medical Education
Department, and member of the Department of Defense Child Fatality
Review
Committee.At the time of trial, she was
the primary forensic pediatrician for CumberlandCounty.

4
The U.S.
Advisory Board on Child Abuse and Neglect was established under Pub. L.
No.
100-294, section 103, of the Child Abuse Prevention and Treatment Act,
amendments of 1988.The report
referenced by Dr. Cooper is entitled, A Nation’s Shame: Fatal Child
Abuse
and Neglect in the United States (1995).

5
At trial,
the military judge accepted Dr. Cooper as an expert in the field of
forensic
pediatrics without objection from defense counsel.Thus, Dr. Cooper’s qualifications are not in
issue on appeal.

6
Appellant
did not raise a challenge under Daubert regarding the
reliability of Dr.
Cooper’s methodology or her conclusion of “non-accidental asphyxiation.”SeeDaubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993).Therefore, we do not address
what impact, if any, a Daubert challenge would have had on the
scope and
content of Dr. Cooper’s testimony.

GIERKE, Judge, with whom EFFRON,
Judge, joins (concurring in part and in the result):

I agree with the majority on all
issues except I(A), concerning the
necessity to
provide rights warnings before a law enforcement agent may ask a
suspect to
take a polygraph examination.

Regardless of whether, as a general
matter, such a request is reasonably likely to elicit an incriminating
response, in this case it did not do so.Rather, all of Appellant’s incriminating statements were made
only after
Special Agent Kraus had informed Appellant of her rights pursuant to
Article
31, Uniform Code of Military Justice, 10 U.S.C. § 831 (2000), Miranda
v.
Arizona, 384 U.S. 436 (1966), and United States v. Tempia,
16 C.M.A.
629, 37 C.M.R. 249 (1967), and after Appellant waived those rights.

Voluntariness is the touchstone for
determining a subsequent statement’s admissibility even where the
suspect has
let the cat out of the bag in a previous unwarned but voluntary
statement.SeeUnited States v. Lichtenhan, 40
M.J. 466
(C.M.A. 1994).In this case, Appellant
made no incriminating statements before Special Agent Kraus gave her a
complete
rights warning and obtained a waiver of those rights.Because Special Agent Engelman’s request
resulted in no taint, it did not affect the Appellant’s admissions to
Special
Agent Kraus.There is, therefore, no
need to resolve issue I(A).I reserve judgment on that legal issue.

ERDMANN, J. (concurring in part and
in the result):

I agree with the
majority on all issues other than the nature of the three statements
made by
Dr. Cooper.In the context of this case,
these statements are improper profiling evidence in that they
characterized
Senior Airman Traum as a person who would both abuse and kill her
natural
child.

I recognize the
distinction made by the majority between testimony relating to the
characteristics of a child victim and the characteristics of an accused.However, testimony that in isolation
would
not constitute “profiling” evidence may well become “profiling” when
heard in
the context of a particular case.This
is such a case.

Before the members, Dr. Cooper first
stated that “eighty percent of children who die, die from a one[-]time
event.”Because there was no evidence of
prior abuse and unrefuted evidence that Traum had been alone with her
baby
prior to the death, this statement had the effect of rendering it 80%
likely
that Traum was the cause of the “one[-]time event” that resulted in her
baby’s
death.

Dr. Cooper’s next statement was that
“[i]f a child is less than four years of age, the most common cause of
trauma
death is going to be child maltreatment.”The prosecution had already established that the baby was under
four, showed
evidence of physical trauma and was alone with Traum during the time
any trauma
could have been inflicted.In
conjunction with the earlier evidence, this statement identified the
death as resulting
from trauma and identified Traum as the only person who could have
inflicted
the trauma.These two conclusions were
virtually inseparable and the second is clearly beyond the realm of
permissible
expert testimony.

As noted by the majority, Dr.
Cooper’s final statement is certainly the most troublesome:
“Overwhelmingly,
the most likely person to kill a child is going to be his or her own
biological
parent.”Contextualized, Dr. Cooper’s
statement meant that Traum, as the biological parent, was
overwhelmingly the
most likely person to have killed her child.An expert may not testify that the accused committed the crime
being
tried, and Dr. Cooper should not have been permitted to do through
presentation
of “information or data” that which she could not have done through
direct testimony.SeeUnited States v. Diaz, 59 M.J. 79, 92 (C.A.A.F.
2003)(noting “fundamental rule of law that
experts may not
testify as to guilt or innocence”).

In United States v. Banks, 36
M.J. 150, 161 (C.M.A. 1992), this Court condemned “use of any
characteristic
‘profile’ as evidence of guilt or innocence in criminal trials.”We defined the nature of such improper
profile evidence to go beyond character evidence per se:

Inadmissible
profile evidence does not merely address a profile where the factors
relate
only to a “character trait” of the accused.The factors in the profile may be any information or data
so as
to place appellant in an alleged “group” of persons who have committed
offenses
in the past.

Id. at 163.While all three of Dr. Cooper’s statements constitute
“profiling”
evidence, taken together they certainly could cause the members to
classify Traum
as a child abuser and killer.Consistent
with our holding in Banks, these statements carry the danger of
prejudice “greatly” outweighing any probative value the information may
have. Id. at 161.Evidence such as this turns the trial of criminal charges away
from one
of facts to “a litmus-paper test for conformity with any set of
characteristics, factors, or circumstances.”Id.

Finally, in this case the military
judge admitted the three statements because it was “counterintuitive”
that a
parent would be involved in the death of his or her child.This ruling reveals that the military judge
admitted the evidence not to show that the child’s death was a crime,
but to
show specifically that the parent was the perpetrator.The very purpose for which the statements
were admitted was to identify Traum as one of a very limited group who
would
kill her child based on probabilities and inferences rather than upon
the facts
of the case.

Nevertheless, for the same reasons
that the majority found the error with respect to the admission of Dr.
Cooper’s
third statement to be harmless, I find that the error relating to the
admission
of all three statements to be harmless.Therefore, I join in affirming the decision of the court below.